The Human Rights Committee,
established under article 28 of the International Covenant on Civil
and Political Rights,

Meeting on 18 October
2000

Having concluded
its consideration of communication No. 736/1997 submitted to the Human
Rights Committee by Malcolm Ross under the Optional Protocol to the
International Covenant on Civil and Political Rights,

Having taken into account
all written information made available to it by the author of the
communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Malcolm Ross, a Canadian citizen.
He claims to be a victim of a violation by Canada of articles 18 and
19 of the Covenant. He is represented by counsel, Mr. Douglas H. Christie.

The facts as submitted
by the author:

2.1 The author worked
as a modified resource teacher for remedial reading in a school district
of New Brunswick from September 1976 to September 1991. Throughout
this period, he published several books and pamphlets and made other
public statements, including a television interview, reflecting controversial,
allegedly religious opinions. His books concerned abortion, conflicts
between Judaism and Christianity, and the defence of the Christian
religion. Local media coverage of his writings contributed to his
ideas gaining notoriety in the community. The author emphasises that
his publications were not contrary to Canadian law and that he was
never prosecuted for the expression of his opinions. Furthermore,
all writings were produced in his own time, and his opinions never
formed part of his teaching.

2.2 Following expressed
concern, the author's in-class teaching was monitored from 1979 onwards.
Controversy around the author grew and, as a result of publicly expressed
concern, the School Board on 16 March 1988, reprimanded the author
and warned him that continued public discussion of his views could
lead to further disciplinary action, including dismissal. He was,
however, allowed to continue to teach, and this disciplinary action
was removed from his file in September 1989. On 21 November 1989,
the author made a television appearance and was again reprimanded
by the School Board on 30 November 1989.

2.3 On 21 April 1988,
a Mr. David Attis, a Jewish parent, whose children attended another
school within the same School District, filed a complaint with the
Human Rights Commission of New Brunswick, alleging that the School
Board, by failing to take action against the author, condoned his
anti-Jewish views and breached section 5 of the Human Rights Act by
discriminating against Jewish and other minority students. This complaint
ultimately led to the sanctions set out in para 4.3 below.

Relevant domestic
procedures and legislation:

3.1 As a result of its
federal structure, Canada's human rights law is bifurcated between
the federal and the provincial jurisdictions. Each province, as well
as the federal and territorial jurisdictions, has enacted human rights
legislation. The details of the different legislative regimes may
differ, but their overall structure and contour are similar.

3.2 According to the State
party, the human rights codes protect Canadian citizens and residents
from discrimination in numerous areas, including employment, accommodation
and services provided to the public. Any individual claiming to be
a victim of discrimination may file a complaint with the relevant
human rights commission, which will in turn inquire into the complaint.
The burden of proof to be met by the complainant is the civil standard
based on a balance of probabilities, and the complainant need not
show that the individual intended to discriminate. A tribunal appointed
to inquire into a complaint has the authority to impose a wide range
of remedial orders, but has no authority to impose penal sanctions.
Individuals concerned about speech that denigrates particular minorities
may choose to file a complaint with a human rights commission rather
than or in addition to filing a complaint with the police.

3.3 The complaint against
the School Board was lodged under section 5(1) of the New Brunswick
Human Rights Code. This section reads:

«No person, directly or indirectly, alone or with another, by himself
or by the interpretation of another, shall

(a) deny to any person or class of persons with respect to any accommodation,
services or facilities available to the public, or

(b) discriminate against
any person or class of persons with respect to any accommodation,
services or facilities available to the public,

3.4 In his complaint,
Mr. Attis submitted that the School Board had violated section 5 by
providing educational services to the public which discriminated on
the basis of religion and ancestry in that they failed to take adequate
measures to deal with the author. Under section 20(1) of the same
Act, if unable to effect a settlement of the matter, the Human Rights
Commission may appoint a board of inquiry composed of one or more
persons to hold an inquiry. The board appointed to examine the complaint
against the School Board made its orders pursuant to section 20 (6.2)
of the same Act, which reads:

«Where, at the conclusion of an inquiry, the Board finds, on a balance
of probabilities, that a violation of this Act has occurred, it may
order any party found to have violated the Act

(a) to do, or refrain from doing, any act or acts so as to effect
compliance with the Act,

(b) to rectify any
harm caused by the violation

(c) to restore any
party adversely affected by the violation to the position he would
have been in but for the violation,

(d) to reinstate any
party who has been removed from a position of employment in violation
of the Act

(e) to compensate
any party adversely affected by the violation for any consequent
expenditure, financial loss or deprivation of benefit, in such
amount as the Board considers just and appropriate, and

(f) to compensate
any party adversely affected by the violation for any consequent
emotional suffering, including that resulting from injury to dignity,
feeling or self-respect, in such amount as the Board considers
just and appropriate.»

3.5 Since 1982, the Canadian
Charter of Rights and Freedoms («the Charter») has been part of the
Canadian Constitution, and consequently any law that is inconsistent
with its provisions is, to the extent of that inconsistency, of no
force or effect. The Charter applies to the federal, provincial and
territorial governments in Canada, with respect to all actions of
those governments, whether they be legislative, executive or administrative.
Provincial human rights codes and any orders made pursuant to such
codes are subject to review under the Charter. The limitation of a
Charter right may be justified under section 1 of the Charter, if
the Government can demonstrate that the limitation is prescribed by
law and is justified in a free and democratic society. Sections 1,
2(a) and 2(b) of the Charter provide:

«1. The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free
and democratic society.

2. Everyone has the
following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought,
belief, opinion and expression, including freedom of the press
and other media of communication; »

3.6 There are also several
other legislative mechanisms both at the federal and provincial level
to deal with expressions that denigrate particular groups in Canadian
society. For example, the Criminal Code prohibits advocating genocide,
the public incitement of hatred and the willful promotion of hatred.
The consent of the Attorney General is required to commence a prosecution
with respect to these offences. The burden of proof on the Crown is
to demonstrate that the accused is guilty beyond a reasonable doubt
and the Crown must prove all the requisite elements of the offence,
including that the accused possessed the requisite mens rea.

The procedure before
the domestic tribunals:

4.1 On 1 September 1988,
a Human Rights Board of Inquiry was established to investigate the
complaint. In December 1990 and continuing until the spring of 1991,
the first hearing was held before the Board. All parties were represented
at the hearing and, according to the State party, were given full
opportunity to present evidence and make representations. There were
in total twenty-two days of hearing, and testimony was given by eleven
witnesses. The Board found that there was no evidence of any classroom
activity by the author on which to base a complaint of discrimination.
However, the Board of Inquiry also noted that

« a teacher's off-duty conduct can impact on his or her assigned
duties and thus is a relevant consideration... An important
factor to consider,
in determining if the Complainant has been discriminated against
by Mr. Malcolm Ross and the School Board, is the fact that
teachers are
role models for students whether a student is in a particular teacher's
class or not. In addition to merely conveying curriculum
information
to children in the classroom, teachers play a much broader role
in influencing children through their general demeanour
in the classroom
and through their off-duty lifestyle. This role model influence
on students means that a teacher's off-duty conduct can
fall within the
scope of the employment relationship. While there is a reluctance
to impose restrictions on the freedom of employees to live
their independent
lives when on their
own time, the right to discipline employees for conduct while off-duty,
when that conduct can be shown to have a negative
influence on the employer's operation has been well established
in legal precedent».

4.2 In its assessment
of the author's off-duty activities and their impact, the Board of
Inquiry made reference to four published books or pamphlets entitled
respectively Web of Deceit, The Real Holocaust, Spectre
of Power and Christianity vs. Judeo-Christianity, as well
as to a letter to the editor of The Miramichi Leader dated
22 October 1986 and a local television interview given in 1989. The
Board of Inquiry stated, inter alia, that it had

« no hesitation in concluding that there are many references in these
published writings and comments by Malcolm Ross which are prima
facie discriminatory against persons of the Jewish faith and ancestry.
It would be an impossible task to list every prejudicial view or discriminatory
comment contained in his writings as they are innumerable and permeate
his writings. These comments denigrate the faith and beliefs of Jews
and call upon true Christians to not merely question the validity
of Jewish beliefs and teachings but to hold those of the Jewish faith
and ancestry in contempt as undermining freedom, democracy and Christian
beliefs and values. Malcolm Ross identifies Judaism as the enemy and
calls on all Christians to join the battle.

Malcolm Ross has used
the technique in his writings of quoting other authors who have
made derogatory comments about Jews and Judaism. He intertwines
these derogatory quotes with his own comments in a way such that
he must reasonably be seen as adopting the views expressed in them
as his own. Throughout his books, Malcolm Ross continuously alleges
that the Christian faith and way of life are under attack by an
international conspiracy in which the leaders of Jewry are prominent.

The writings and comments
of Malcolm Ross cannot be categorized as falling within the scope
of scholarly discussion which might remove them from the scope of
section 5 [of the Human Rights Act]. The materials are not expressed
in a fashion that objectively summarizes findings and conclusions
or propositions. While the writings may have involved some substantial
research, Malcolm Ross' primary purpose is clearly to attack the
truthfulness, integrity, dignity and motives of Jewish persons rather
than the presentation of scholarly research.»

4.3 The Board of Inquiry
heard evidence from two students from the school district who described
the educational community in detail. Inter alia, they gave evidence
of repeated and continual harassment in the form of derogatory name
calling of Jewish students, carving of swastikas into desks of Jewish
children, drawing of swastikas on blackboards and general intimidation
of Jewish students. The Board of Inquiry found no direct evidence
that the author's off-duty conduct had impacted on the school district,
but found that it would be reasonable to anticipate that his writings
were a factor influencing some discriminatory conduct by the students.
In conclusion, the Board of Inquiry held that the public statements
and writings of Malcolm Ross had continually over many years contributed
to the creation of a «poisoned environment within School District
15 which has greatly interfered with the educational services provided
to the Complainant and his children». Thus, the Board of Inquiry held
that the School Board was vicariously liable for the discriminatory
actions of its employee and that it was directly in violation of the
Act due to its failure to discipline the author in a timely and appropriate
manner, so endorsing his out-of-school activities and writings. Therefore,
on 28 August 1991, the Board of Inquiry ordered

« (2) That the School Board

(a) immediately place
Malcolm Ross on a leave of absence without pay for a period of eighteen
months;

(b) appoint Malcolm
Ross a non-teaching position if, , a non-teaching position becomes
available in School District 15 for which Malcolm Ross is qualified.

(c) terminate his employment
at the end of the eighteen months leave of absence without pay if,
in the interim, he has not been offered and accepted a non-teaching
position.

terminate Malcolm Ross'
employment with the School Board immediately if, at any time during
the eighteen month leave of absence or of at any time during his
employment in a non-teaching position, he:

(i) publishes or writes
for the purpose of publication, anything that mentions a Jewish
or Zionist conspiracy, or attacks followers of the Jewish religion,
or

(ii) publishes, sells
or distributes any of the following publications, directly or indirectly:
Web of Deceit, The Real Holocaust (The attack on unborn
children and life itself), Spectre of Power, Christianity
vs Judeo-Christianity (The battle for truth).»

4.4 Pursuant to the Order, the School Board transferred the author to
a non-classroom teaching position in the School District. The author
applied for judicial review requesting that the order be removed and
quashed. On 31 December 1991, Creaghan J. of the Court of Queen's Bench
allowed the application in part, quashing clause 2(d) of the order,
on the ground that it was in excess of jurisdiction and violated section
2 of the Charter. As regards clauses (a), (b), and (c) of the order,
the court found that they limited the author's Charter rights to freedom
of religion and expression, but that they were saved under section 1
of the Charter.

4.5 The author appealed
the decision of the Court of Queen's Bench to the Court of Appeal
of New Brunswick. At the same time, Mr. Attis cross-appealed the Court's
decision regarding section 2(d) of the Order. The Court of Appeal
allowed the author's appeal, quashing the order given by the Board
of Inquiry, and accordingly rejected the cross-appeal. By judgement
of 20 December 1993, the Court held that the order violated the author's
rights under section 2 (a) and (b) of the Charter in that they penalised
him for publicly expressing his sincerely held views by preventing
him from continuing to teach. The Court considered that, since it
was the author's activities outside the school that had attracted
the complaint, and since it had never been suggested that he used
his teaching position to further his religious views, the ordered
remedy did not meet the test under section 1 of the Charter, i.e.
it could not be deemed a specific purpose so pressing and substantial
as to override the author's constitutional guarantee of freedom of
expression. To find otherwise would, in the Court's view, have the
effect of condoning the suppression of views that are not politically
popular any given time. One judge, Ryan J.A., dissented and held that
the author's appeal should have been dismissed and that the cross-appeal
should have been allowed, with the result that section 2(d) of the
Order should have been reinstated.

4.6 Mr. Attis, the Human
Rights Commission and the Canadian Jewish Congress then sought leave
to appeal to the Supreme Court of Canada, which allowed the appeal
and, by decision of 3 April 1996, reversed the judgment of the Court
of Appeal, and restored clauses 2(a), (b) and (c) of the order. In
reaching its decision, the Supreme Court first found that the Board
of Inquiry's finding of discrimination contrary to section 5 of the
Human Rights Act on the part of the School Board was supported by
the evidence and contained no error. With regard to the evidence of
discrimination on the part of the School Board generally, and in particular
as to the creation of a poisoned environment in the School District
attributable to the conduct of the author, the Supreme Court held

« that a reasonable inference is sufficient in this case to support
a finding that the continued employment of [the author] impaired the
educational environment generally in creating a 'poisoned' environment
characterized by a lack of equality and tolerance. [The author's]
off-duty conduct impaired his ability to be impartial and impacted
upon the educational environment in which he taught. (para. 49)

The reason that it is
possible to 'reasonably anticipate' the causal relationship in this
appeal is because of the significant influence teachers exert on
their students and the stature associated with the role of a teacher.
It is thus necessary to remove [the author] from his teaching position
to ensure that no influence of this kind is exerted by him upon
his students and to ensure that educational services are discrimination
free.» (para 101)

4.7 On the particular
position and responsibilities of teachers and on the relevance of
a teacher's off duty conduct, the Supreme Court further commented:

« Teachers are inextricably linked to the integrity of the school
system. Teachers occupy positions of trust and confidence, and exert
considerable influence over their students as a result of their positions.
The conduct of a teacher bears directly upon the community's perception
of the ability of the teacher to fulfill such a position of trust
and influence, and upon the community's confidence in the public school
system as a whole.

By their conduct, teachers
as «medium» must be perceived to uphold the values, beliefs and
knowledge sought to be transmitted by the school system. The conduct
of a teacher is evaluated on the basis of his or her position, rather
than whether the conduct occurs within the classroom or beyond.
Teachers are seen by the community to be the medium for the educational
message and because of the community position they occupy, they
are not able to «choose which hat they will wear on what occasion».

It is on the basis of
the position of trust and influence that we can hold the teacher
to high standards both on and off duty, and it is an erosion of
these standards that may lead to a loss in the community of confidence
in the public school system. I do not wish to be understood as advocating
an approach that subjects the entire lives of teachers to inordinate
scrutiny on the basis of more onerous moral standards of behaviour.
This could lead to a substantial invasion of the privacy rights
and fundamental freedoms of teachers. However, where a «poisoned»
environment within the school system is traceable to the off-duty
conduct of a teacher that is likely to produce a corresponding loss
of confidence in the teacher and the system as a whole, then the
off-duty conduct of the teacher is relevant.» (paras. 43-45)

4.8 Secondly, the Court
examined the validity of the impugned Order under the Canadian Constitution.
In this regard, the Court first considered that the Order infringed
sections 2(a) and 2(b) of the Charter as it in effect restricted respectively
the author's freedom of religion and his freedom of expression. The
Court went on to consider whether these infringements were justifiable
under section 1 of the Charter, and found that the infringements had
occurred with the aim of eradicating discrimination in the provision
of educational services to the public, a 'pressing and substantial'
objective. The Court further found that the measures (a) (b) and (c)
imposed by the order could withstand the proportionality test, that
is there existed a rational connection between the measures and the
objective, the impairment of the author's right was minimal, and there
was proportionality between the effects of the measures and their
objective. Clause (d) was found not to be justified since it did not
minimally impair the author's constitutional freedoms, but imposed
a permanent ban on his expressions.

The complaint:

5.1 The author claims
that his rights under articles 18 and 19 of the Covenant have been
violated in that he is refused the right to express freely his religious
opinions. In this context, his counsel emphasises, which was recognised
by the Courts, that the author never expressed his opinions in class
and that he had a good record as a teacher. Counsel further states
that there is no evidence that any of the students at the school had
been adversely affected by the author's writings or were influenced
by them, nor that the author ever committed any act of discrimination.
In this context, it is pointed out that there were no Jewish students
in the author's class.

5.2 Counsel argues that
there is no rational connection between expressing a discriminatory
religious opinion (i.e. this religion is true and that is false) and
an act of discrimination (i.e. treating someone differently because
of religion). In this regard, it is submitted that the author's opinions
are sincere and of a religious character, opposing the philosophy
of Judaism, since he feels that Christianity is under attack from
Zionist interests. Counsel asserts that the requirement that an employee's
conscience and religious expression be subject to State scrutiny or
employer regulation in their off-duty time would make religious freedom
meaningless.

5.3 Counsel further claims
that the author's opinions and expressions are not contrary to Canadian
law, which prohibits hate propaganda, and that he had never been prosecuted
for expressing his ideas. Counsel submits that the author's case is
not comparable to J.R.T. and W.G. v Canada(1), but
rather draws comparison to the case of Vogt v. Germany(2),
decided by the European Court of Human Rights. Counsel submits that
the order destroyed the author's right to teach which was his professional
livelihood.

5.4 Counsel further argues
that, if the Board of Inquiry was of the opinion that there was an
anti-Semitic atmosphere among the students in the school district,
it should have recommended measures to discipline the students committing
such acts of discrimination. The author denies that his views are
racist, any more than atheism is racist or Judaism itself. It is further
stated that criticism of Judaism or Zionism for religious reasons
cannot be equated to anti-Semitism. The author feels discriminated
against, because he is convinced that a teacher publicly attacking
Christianity would not be disciplined in a similar way.

The State party's
submission and the author's comments thereon:

6.1 In its submission
of 7 September 1998, the State party offers its observations both
on the admissibility and the merits of the communication. The State
party submits that the communication should be deemed inadmissible
both for lack of substantiation and because it is incompatible with
the relevant provisions of the Covenant. Alternatively, in the event
that the Committee decides that the author's communication is admissible,
the State party submits that it has not violated articles 18 and 19
of the Covenant.

6.2 The State party submits
that the communication should be deemed inadmissible as incompatible
with the provisions of the Covenant because the publications of the
author fall within the scope of article 20, paragraph 2, of the Covenant,
i.e. they must be considered «advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or
violence». In this regard, the State party points out that the Supreme
Court of Canada found that the publications denigrated the faith and
beliefs of Jewish people and called upon «true Christians» to not
merely question the validity of those beliefs but to hold those of
the Jewish faith in contempt. Furthermore, it is stated that the author
identified Judaism as the enemy and called upon «Christians» to join
in the battle.

6.3 The State party argues
that articles 18, 19 and 20 of the Covenant must be interpreted in
a consistent manner, and that the State party therefore cannot be
in violation of articles 18 or 19 by taking measures to comply with
article 20. It is submitted that freedom of religion and expression
under the Covenant must be interpreted as not including the advocacy
of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence. In this regard, the State
party also invokes article 5, paragraph 1, of the Covenant, and submits
that to interpret articles 18 and 19 as protecting the dissemination
of anti-Semitic speech cloaked as Christianity denies Jews the freedom
to exercise their religion, instills fear in Jews and other religious
minorities and degrades the Christian faith.

6.4 With regard to the
interpretation and application of article 20, the State party makes
reference to the jurisprudence of the Committee, in particular the
case of J.R.T. and W.G. v Canada(3). The State party
notes that the author's counsel contends that the present case is
distinguishable from J.R.T. and W.G. v Canada in that Mr. Ross
did not introduce his opinions into the workplace; his opinions were
of a religious nature; and none of his publications were contrary
to Canadian law. While acknowledging that there are some factual differences
between the two cases, the State party submits that there are also
important similarities between them and that the rule concerning the
inadmissibility of communications incompatible with the Covenant is
equally applicable. First, it is pointed out that both communications
concerned anti-Semitic speech. The State party denies counsel's contention
that the author's views are of a religious nature, and argues that
they promote anti-Semitism and cannot be said to be religious beliefs
or part of the Christian faith. Second, it is pointed out that both
communications involved orders made pursuant to human rights legislation
and not charges under the hate propaganda provisions of the Criminal
Code. In this regard, it is submitted that counsel is wrong when he
argues that the author's writings and public statements were not contrary
to Canadian law. The writings and statements did, according to the
State party, contravene the New Brunswick Human Rights Act as they
were found to be discriminatory and to have created a poisoned environment
in the school district.

6.5 The State party further
submits that the author's claim under article 18 should be held inadmissible
as being incompatible with the Covenant also because his opinions
«do not express religious beliefs and certainly do not fall within
the tenets of Christian faith.» The State party argues that the author
has «cloaked his views under the guise of the Christian faith but
in fact his views express hatred and suspicion of the Jewish people
and their religion.» It is further submitted that the author has not
provided any evidence showing how anti-Semitic views are part of the
Christian faith, and that no such evidence would be forthcoming. Similarly,
it is asserted that the author's expressions are not manifestations
of a religion, as he did not publish them for the purpose of worship,
observance, practice or teaching of a religion.

6.6 Lastly on the compatibility
of the communication with the provisions of the Covenant, the State
party invokes article 18, paragraphs 2 and 4, and claims that States
parties under these provisions have an obligation to ensure that teachers
within their public education systems promote respect for all religions
and beliefs and actively denounce any forms of bias, prejudice or
intolerance. The State party argues that if it were to permit the
author to continue teaching, it could be in violation of these provisions
for impeding the rights of Jewish students to express their faith
and to feel comfortable and self-confident in the public school system.
Thus, it is submitted that the author's claim under article 18 should
be held inadmissible as being incompatible also with article 18, paragraphs
2 and 4, of the Covenant.

6.7 Furthermore, the State
party submits that both the claim under article 18 and the claim under
article 19 should be held inadmissible on the ground that the author
has not submitted sufficient evidence to substantiate a prima facie
claim. Noting that the author only provided the Committee with copies
of his own submissions to the Supreme Court and the decisions of the
courts, the State party argues that beyond making the bald assertion
that the decision of the Supreme court infringes the author's rights
under articles 18 and 19, the communication provides no specificity
of terms sufficient to support its admissibility. In particular, it
is submitted that nowhere is the expansive and carefully reasoned
decision of a unanimous nine-person Bench of the Supreme Court subjected
to a sustained critique which would support the allegations made by
the author.

6.8 As to the merits of
the communication, the State party first submits that the author has
not established how his rights to freedom of religion and expression
have been limited or restricted by the Order of the Board of Inquiry
as upheld by the Supreme Court. It is argued that the author is free
to express his views while employed by the school board in a non-teaching
position or while employed elsewhere.

6.9 Should the Committee
find that the author's rights to freedom of religion and/or expression
have been limited, the State party submits that these limitations
are justified pursuant to article 18, paragraph 3, and 19, paragraph
3, respectively, as they were (i) provided by law, (ii) imposed for
one of the recognized purposes, and (iii) were necessary to achieve
its stated purpose. The State party submits that the analysis that
must be undertaken by the Committee in this respect is very similar
to that which was employed by the Supreme Court of Canada under section
1 of the Charter, and that the Committee should give considerable
weight to the Court's decision.

6.10 With regard to the
requirement that any limitations must be provided by law, the State
party points out that the author's writings and public statements
were found to be discriminatory and to have created a poisoned environment
in violation of subsection 5(1) of the New Brunswick Human Rights
Act. It is further stated that the Order rendered by the Board of
Inquiry was the remedy granted for the violation of subsection 5(1)
and was made pursuant to the Act.

6.11 With regard to the
requirement that the limitation must be imposed for one of the purposes
set out in articles 18, paragraph 3, and 19, paragraph 3, respective,
the State party submits that the Order was imposed both for the protection
of the fundamental rights of others (4) and for the protection
of public morals. As regards the first of these purposes, the State
party makes reference to the case of Faurisson v France(5),
and submits that the Order was imposed on the author for the purposes
of protecting the freedom of religion and expression and the right
to equality of the Jewish community. The State party points out that
the Supreme Court found that the Order protected the fundamental rights
and freedoms of Jewish parents to have their children educated and
for Jewish children to receive an education in the public school system
free from bias, prejudice and intolerance. As regards the protection
of public morals, the State party submits that Canadian society is
multicultural and that it is fundamental to the moral fabric that
all Canadians are entitled to equality without discrimination on the
basis of race, religion or nationality.

6.12 Furthermore, the
State party submits that any restrictions contained in the Order were
clearly necessary to protect both the fundamental rights and freedoms
of the Jewish people and Canadian values of respect for equality and
diversity (public morals). The State party argues that the Order was
necessary to ensure that children in the school district could be
educated in a school system free from bias, prejudice and intolerance
and in which Canadian values of equality and respect for diversity
could be fostered. Furthermore, it is argued that it was necessary
to remove the author from teaching in order to remedy the poisoned
environment that his writings and public statements had created. In
this last regard, the State party submits, as the Supreme Court found,
that teachers occupy positions of trust and confidence and exert considerable
influence over their students. As a result, it is submitted that teachers
should be held to a higher standard with respect to their conduct
while teaching, as well as during their off-duty activities. According
to the State party, the author, as a public school teacher, was in
a position to exert influence on young persons who did not yet possess
the knowledge or judgment to place views and beliefs into a proper
context. Moreover, the Board of Inquiry heard witnesses who testified
that Jewish students experienced fear, injury to self-confidence and
a reluctance to participate in the school system because of the author's
statements. It is submitted that to remedy this situation, it was
necessary to pass the Order.

6.13 Finally, the State
party notes that the author draws comparison to the European Court
of Human Rights' decision in Vogt v Germany(6), but
argues that that decision is distinguishable from the instant case
in several important respects: First, the applicant in Vogt
was an active member of a lawful political party for the stated purpose
of promoting peace and combating neo-fascism. Secondly, the nature
of speech involved in the two cases is profoundly different, as the
political expression in Vogt was not of a discriminatory character
as in this case.

7.1 In his comments of
27 April 1999, the author reiterates that there exists no evidence
that he ever expressed any of his opinions in class. Furthermore,
there exists no evidence that his privately established beliefs had
any effect on his workplace, i.e. that they created a poisoned environment.
The Board of Inquiry only found that it was reasonable to anticipate
such effects.

7.2 The author denies
that his writings and statements undermine democratic values and that
they are anti-Semitic. He also denies that they amount to advocacy
of religious hatred that constitutes incitement to discrimination,
hostility and violence. With regard to the State party's claim in
relation to article 20 of the Covenant, the author submits that nowhere
in his writings does he attempt to incite hatred, but rather to «defend
his religion from the hatred of others». As regards article 5 of the
Covenant, the author argues that he has never stated anything to the
effect that Jews cannot practice their religion without restriction.
On the contrary, it is submitted that the State party denied him
the rights and freedoms recognized in the Covenant, when the Supreme
Court ruled that the author cannot exercise his religious freedom
and still be a teacher.

7.3 Furthermore, it is
submitted that, as opposed to what is held by the State party, his
statements express religious beliefs within the meaning of the Covenant.
The author argues that his books were written «to defend the Christian
Faith and Heritage against those who would denigrate them, and to
encourage people to worship God, the Holy Trinity, as revealed in
the Christian Faith». According to the author, «a perusal of his books
point to his desire to work with other Christians to fulfill the ancient
Christian mandate to establish the Kingship of Christ in Society».
In this connection, the author also points out that the Supreme Court
of Canada in its judgment held that the case involved religious expression,
and that it found that the Order of the Board of Inquiry infringed
the author's freedom of religion.

7.4 With regard to the
State party's contention that the author has not submitted evidence
as to how the Order, removing him from his teaching position but allowing
him to express himself while in a non-teaching position, has impinged
upon the freedoms to profess his religious beliefs or his freedom
to express his opinions, the author claims that in June 1996 he was
handed a lay off notice by his employer. The author claims that this
is «severe punishment for exercising his constitutionally guaranteed
rights to freedom of religion and freedom of expression», and implies
that the notice was a result of, or at least linked to, the previous
Order and Supreme Court judgment against him. It is further claimed
that he received no compensation or severance pay, and that the only
reason given was that the job had been terminated. The author states
that he has never been interviewed for, nor offered another position
even though he at the time had worked the school district for almost
25 years.

Further submission
by the State party and the author's comments thereon:

8.1 In its further submission
of 28 September 1999, the State party notes the author's assertion
that there was no evidence to support the finding of a «poisoned environment»
within the School District attributable to the author's writings and
public statements. To contest this assertion, the State party refers
to the unanimous decision of the Supreme Court and, in particular,
its findings quoted in para. 4.7 supra. The State party argues that
the Supreme Court extensively reviewed the findings of fact as to
discrimination and held that there was sufficient evidence. Thus,
it is submitted, the author's assertions on this question must be
rejected.

8.2 With regard to the
issue of whether or not the author's opinions can be deemed religious
beliefs within the meaning of the Covenant, the State party recognizes
that the Supreme Court of Canada considered the opinions to be 'religious
beliefs' within the meaning of the Canadian Charter. However, the
State party points out that even if Canadian law places virtually
no limits on what it considers to be religious beliefs under section
2 of the Charter, it nevertheless protects against abuses of the right
to religious freedom by the limitation clause in section 1. The State
party argues that while this is the approach taken under Canadian
law, the jurisprudence of the Human Rights Committee suggests that
it has applied a narrower interpretation with regard to article 18.
In particular, the State party refers to the case of M.A.B, W.A.T.
and J.-A.Y.T. v Canada(7). It is due to this difference
in approach that the State party submits that the claim under article
18 should be held inadmissible under article 3 of the Optional Protocol,
even if the similar, Canadian provisions are interpreted differently
in domestic law.

8.3 With regard to the
author's employment status, the State party notes that the author
«has been laid off his job since 1996», but contests that this was
«severe punishment for exercising his constitutionally guaranteed
rights to freedom of religion and freedom of expression» or that it
in any manner was connected to the previous actions against the author.
It is submitted that the author's security of employment was only
minimally affected by the Order of the Board of Inquiry, as upheld
by the Supreme Court. It is stated that, after the Order was issued
on 28 August 1991, the author was placed on leave without pay for
one week only, from 4-10 September 1991. As of 11 September 1991,
he was assigned to a full time position in the District office, providing
assistance in the delivery of programs to students 'at risk'. According
to the State party, that position, originally in place for the duration
of the 1991-92 school year was specifically based on the availability
of funding, but in fact continued to be funded through to June 1996.
The funding was lost as part of a general reorganization of the New
Brunswick School System, effective 1 March 1996. This entailed the
abolition of School Boards and the vesting of authority for the administration
of the educational system in the Minister of Education, with a consequent
reduction of both teaching and administrative positions throughout
the Province.

8.4 In any event, it is
submitted, the author's non-teaching position was specifically noted
to fall under the terms and conditions of the collective agreement
between the Board of Management and the New Brunswick Teachers' Federation,
which allows for any employee to complain of an improper lay off or
dismissal and, if the complaint is upheld, to obtain relief. As the
author has failed to seek such relief, it is submitted that he cannot
now bring unsubstantiated allegations to the Committee that his loss
of employment is a result of the Order or the judgment of the Supreme
Court.

9. In his submission of
5 January 2000, the author reiterates his arguments with regard to
the lack of direct evidence and again points out that his controversial
views never formed part of his teaching. As regards his employment
status, the author notes that the Supreme Court on 3 April 1996 upheld
the Order against the School Board, following which he was to be offered
a non-teaching post. It is submitted that he was never offered such
a post, but that in fact he was laid off as of 1 July 1996. According
to counsel, the fact that the author has not been offered further
employment since his lay off in 1996 «is further evidence of the contempt
with which the government» treats him.

Consideration of
the admissibility of the communication

10.1 Before considering
any claims contained in a communication, the Human Rights Committee
must, in accordance with rule 87 of its rules of procedure, decide
whether or not it is admissible under the Optional Protocol to the
Covenant.

10.2 The Committee notes
that both parties have addressed the merits of the communication.
This enables the Committee to consider both the admissibility and
the merits of the case at this stage, pursuant to rule 94, paragraph
1, of the rules of procedure. However, pursuant to rule 94, paragraph
2, of the rules of procedure, the Committee shall not decide on the
merits of a communication without having considered the applicability
of the grounds of admissibility referred to in the Optional Protocol.

10.3 With regard to the
author's claim that his dismissal in 1996 was connected to the order
of the Supreme Court and thus a result of the restrictions imposed
upon his freedom of speech and freedom to manifest his religion, the
Committee notes that the author has failed to make use of the domestic
remedies that were in place. This part of the author's claim is thus
inadmissible under article 5, paragraph 2(b) of the Optional Protocol.

10.4 Insofar as the author
claims that he is a victim of discrimination, the Committee considers
that his claim is unsubstantiated, for purposes of admissibility,
and thus inadmissible under article 2 of the Optional Protocol.

10.5 The Committee notes
that the State party has contested the admissibility of the remainder
of the communication on several grounds. First, the State party invokes
article 20, paragraph 2, of the Covenant, claiming that the author's
publications must be considered «advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or
violence». Citing the decision of the Committee in J.R.T. and W.G.
v Canada, the State party submits that, as a matter of consequence,
the communication must be deemed inadmissible under article 3 of the
Optional Protocol as being incompatible with the provisions of the
Covenant.

10.6 While noting that
such an approach indeed was employed in the decision in J.R.T.
and W.G. v Canada, the Committee considers that restrictions on
expression which may fall within the scope of article 20 must also
be permissible under article 19, paragraph 3, which lays down requirements
for determining whether restrictions on expression are permissible.
In applying those provisions, the fact that a restriction is claimed
to be required under article 20 is of course relevant. In the present
case, the permissibility of the restrictions is an issue for consideration
on the merits.

10.7 Similarly, the Committee
finds that the questions whether there were restrictions on the author's
right to manifest religious belief and whether any such restrictions
were permissible under article 18, paragraph 3, are admissible.

10.8 The State party has
also submitted that the communication should be held inadmissible
as the author has not submitted sufficient evidence to support a prima
facie case. The State party argues that the author, instead of
filing a detailed submission to the Committee, merely relied on the
decisions of the domestic courts and his own submissions to the Supreme
Court. Thus, it is held, the communication «provides no specificity
of terms sufficient to support its admissibility». The Committee finds,
however, that the author has stated his claims of violation clearly
and that the adduced material sufficiently substantiates those claims,
for purposes of admissibility. Thus, the Committee proceeds with the
examination of the merits of the author's claims, in the light of
the information made available to it by the parties, as required by
article 5, paragraph 1, of the Optional Protocol.

Consideration of
the merits

11.1 With regard to the
author's claim under article 19 of the Covenant, the Committee observes
that, in accordance with article 19 of the Covenant, any restriction
on the right to freedom of expression must cumulatively meet several
conditions set out in paragraph 3. The first issue before the Committee
is therefore whether or not the author's freedom of expression was
restricted through the Board of Inquiry's Order of 28 August 1991,
as upheld by the Supreme Court of Canada. As a result of this Order,
the author was placed on leave without pay for a week and was subsequently
transferred to a non-teaching position. While noting the State party's
argument (see para 6.8 supra) that the author's freedom of expression
was not restricted as he remained free to express his views while
holding a non-teaching position or while employed elsewhere, the Committee
is unable to agree that the removal of the author from his teaching
position was not, in effect, a restriction on his freedom of expression.
The loss of a teaching position was a significant detriment, even
if no or only insignificant pecuniary damage is suffered. This detriment
was imposed on the author because of the expression of his views,
and in the view of the Committee this is a restriction which has to
be justified under article 19, paragraph 3, in order to be in compliance
with the Covenant.

11.2 The next issue before
the Committee is whether the restriction on the author's right to
freedom of expression met the conditions set out in article 19, paragraph
3, i.e. that it must be provided by law, it must address one of the
aims set out in paragraph 3 (a) and (b) (respect of the rights and
reputation of others; protection of national security or of public
order, or of public health or morals), and it must be necessary to
achieve a legitimate purpose.

11.3 As regards the requirement
that the restriction be provided by law, the Committee notes that
there was a legal framework for the proceedings which led to the author's
removal from a teaching position. The Board of Inquiry found that
the author's off-duty comments denigrated the Jewish faith and that
this had adversely affected the school environment. The Board of Inquiry
held that the School Board was vicariously liable for the discriminatory
actions of its employee and that it had discriminated against the
Jewish students in the school district directly, in violation of section
5 of the New Brunswick Human Rights Act, due to its failure to discipline
the author in a timely and appropriate manner. Pursuant to section
20 (6.2) of the same Act, the Board of Inquiry ordered the School
Board to remedy the discrimination by taking the measures set out
in para 4.3 supra. In effect, and as stated above, the discrimination
was remedied by placing the author on leave without pay for one week
and transferring him to a non-teaching position.

11.4 While noting the
vague criteria of the provisions that were applied in the case against
the School Board and which were used to remove the author from his
teaching position, the Committee must also take into consideration
that the Supreme Court considered all aspects of the case and found
that there was sufficient basis in domestic law for the parts of the
Order which it reinstated. The Committee also notes that the author
was heard in all proceedings and that he had, and availed himself
of, the opportunity to appeal the decisions against him. In the circumstances,
it is not for the Committee to reevaluate the findings of the Supreme
Court on this point, and accordingly it finds that the restriction
was provided for by law.

11.5 When assessing whether
the restrictions placed on the author's freedom of expression were
applied for the purposes recognized by the Covenant, the Committee
begins by noting (8) that the rights or reputations of others
for the protection of which restrictions may be permitted under article
19, may relate to other persons or to a community as a whole. For
instance, and as held in Faurisson v France, restrictions may
be permitted on statements which are of a nature as to raise or strengthen
anti-semitic feeling, in order to uphold the Jewish communities' right
to be protected from religious hatred. Such restrictions also derive
support from the principles reflected in article 20(2) of the Covenant.
The Committee notes that both the Board of Inquiry and the Supreme
Court found that the author's statements were discriminatory against
persons of the Jewish faith and ancestry and that they denigrated
the faith and beliefs of Jews and called upon true Christians to not
merely question the validity of Jewish beliefs and teachings but to
hold those of the Jewish faith and ancestry in contempt as undermining
freedom, democracy and Christian beliefs and values. In view of the
findings as to the nature and effect of the author's public statements,
the Committee concludes that the restrictions imposed on him were
for the purpose of protecting the "rights or reputations"
of persons of Jewish faith, including the right to have an education
in the public school system free from bias, prejudice and intolerance.

11.6 The final issue before
the Committee is whether the restriction on the author's freedom of
expression was necessary to protect the right or reputations of persons
of the Jewish faith. In the circumstances, the Committee recalls that
the exercise of the right to freedom of expression carries with it
special duties and responsibilities. These special duties and responsibilities
are of particular relevance within the school system, especially with
regard to the teaching of young students. In the view of the Committee,
the influence exerted by school teachers may justify restraints in
order to ensure that legitimacy is not given by the school system
to the expression of views which are discriminatory. In this particular
case, the Committee takes note of the fact that the Supreme Court
found that it was reasonable to anticipate that there was a causal
link between the expressions of the author and the «poisoned school
environment» experienced by Jewish children in the School district.
In that context, the removal of the author from a teaching position
can be considered a restriction necessary to protect the right and
freedom of Jewish children to have a school system free from bias,
prejudice and intolerance. Furthermore, the Committee notes that the
author was appointed to a non-teaching position after only a minimal
period on leave without pay and that the restriction thus did not
go any further than that which was necessary to achieve its protective
functions. The Human Rights Committee accordingly concludes that the
facts do not disclose a violation of article 19.

11.8 As regards the author's
claims under article 18, the Committee notes that the actions taken
against the author through the Human Rights Board of Inquiry's Order
of August 1991 were not aimed at his thoughts or beliefs as such,
but rather at the manifestation of those beliefs within a particular
context. The freedom to manifest religious beliefs may be subject
to limitations which are prescribed by law and are necessary to protect
the fundamental rights and freedoms of others, and in the present
case the issues under paragraph 3 of article 18 are therefore substantially
the same as under article 19. Consequently, the Committee holds that
article 18 has not been violated.

12. The Human Rights Committee,
acting under article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights, is of the view
that the facts before it do not disclose a violation of any of the
articles of the International Covenant on Civil and Political Rights.

The text of an individual opinion by one Committee member is appended
to the present document.

[Adopted in English, French
and Spanish, the English text being the original version. Subsequently
to be translated into Arabic, Chinese and Russian as part of the Committee's
Annual Report to the General Assembly.]

Individual opinion of Hipólito Solari Yrigoyen (dissenting)

In my opinion, paras 11.1 and 11.2 of the Committee's Views should read
as follows:

Concerning the author's
claim of a violation of the right protected by article 19 of the Covenant,
the Committee observes that the exercise of the right to freedom of
expression covered by paragraph 2 of that article entails special
duties and responsibilities enumerated in paragraph 3. It cannot,
therefore, accept the claim that the author's freedom of expression
was restricted by the Board of Inquiry's Order of 28 August 1991 as
upheld by the Supreme Court of Canada, since that Order was in keeping
with article 19, paragraph 3, of the Covenant. It must also be pointed
out that the exercise of freedom of expression cannot be regarded
in isolation from the requirements of article 20 of the Covenant,
and that it is that article that the State party invokes to justify
the measures applied to the author, as indicated in paragraph 6.3
above.

H. Solari Yrigoyen [signed]

[Done in English, French
and Spanish, the Spanish text being the original version. Subsequently
to be translated also in Arabic, Chinese and Russian as part of the
Committee's annual report to the General Assembly.]

2. Case No. 7/1994/454/535,
Judgment passed 26 September 1995. In the case, Mrs. Vogt maintained,
inter alia, that her dismissal from the civil service (as a
schoolteacher) on account of her political activities as a member
of the German Communist Party had infringed her right to freedom of
expression secured under article 10 of the European Convention. In
the circumstances, the Court found that article 10 had been violated.

3. The case concerned
tape-recorded telephone messages from the author and a political party
warning the callers «of the dangers of international finance and international
Jewry leading the world into wars, unemployment and inflation and
the collapse of world values and principles». Pursuant to section
3 of the Human Rights Act, the Canadian Human Rights Commission ordered
the author and the political party to cease using the telephone to
communicate such matters. The Human Rights Committee decided that
the communication from the political party was inadmissible for lack
of standing, while the communication from the author was inadmissible
as incompatible with the Covenant because the disseminated messages
«clearly constitute[d] advocacy of racial or religious hatred».

4. Article 18, paragraph
3, refers to the «fundamental rights and freedoms of others» while
article 19, paragraph 3, refers to the «rights and reputations of
others».